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COURT OF ARBITRATION FOR COURT OF ARBITRATION FOR SPORTSPORT

by Michele Colucciby Michele Colucci

www.colucci.euwww.colucci.eu – – info@colucci.euinfo@colucci.eu University of Illinois, Spring Semester 2008University of Illinois, Spring Semester 2008

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LEGAL BACKGROUNDLEGAL BACKGROUND

• Indipendent institution, Lausanne, 1984. Indipendent institution, Lausanne, 1984.

•Need to offer a quick and inexpensive Need to offer a quick and inexpensive procedure to settle sport related disputes.procedure to settle sport related disputes.

•1994:Creation of The International Council of 1994:Creation of The International Council of Arbitration for Sport (ICAS)Arbitration for Sport (ICAS)

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The Code of Sport-related The Code of Sport-related ArbitrationArbitration

• Established in 1994 and revised in Established in 1994 and revised in 2003 2003

• It governs the organisation and It governs the organisation and arbitration procedures of the CAS. arbitration procedures of the CAS.

• Finally, it also contains a set of Finally, it also contains a set of mediation rules and ad hoc rules.mediation rules and ad hoc rules.

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Structure and functionsStructure and functions

• 300 arbitrators from more 87 300 arbitrators from more 87 countriescountries

• Provides services for settlements of Provides services for settlements of disputes:disputes:– ArbitrationArbitration– MediationMediation– Legal OpinionsLegal Opinions

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Arbitration procedures of the CAS

an advisory procedure:it is non-contentious and

allows certain sport bodiesto seek advisory opinions

from the CAS

an ordinary arbitration procedure

a mediation procedure:parties have the option

of reaching anagreement with the help of a mediatoran appeal arbitration

procedure

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• Written opinions provide answers to specific legal Written opinions provide answers to specific legal queries before a case is brought to court and are queries before a case is brought to court and are not legally binding.not legally binding.

• At the Court of Arbitration for Sport (CAS), At the Court of Arbitration for Sport (CAS), Advisory Opinions may also examine sport issues Advisory Opinions may also examine sport issues that are not necessarily of a strict legal nature.that are not necessarily of a strict legal nature.

• In general they are delivered by one person: the In general they are delivered by one person: the Attorney General in the USA judicial system, the Attorney General in the USA judicial system, the Advocate General at the ECJ.Advocate General at the ECJ.

• At the CAS, they are delivered either by a panel At the CAS, they are delivered either by a panel made up of a president and two members or a made up of a president and two members or a sole arbitrator.sole arbitrator.

The function of Opinions in The function of Opinions in judicial discourse judicial discourse

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When can an Opinion be When can an Opinion be requested?requested?

• The request may only come from The request may only come from recognised institutions and recognised institutions and associations and has to be approved associations and has to be approved by the CAS President (R61 of the by the CAS President (R61 of the Code).Code).

• Opinions may only be published with Opinions may only be published with the consent of the requesting parties. the consent of the requesting parties. (R 62)(R 62)

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Who are the participants Who are the participants issuing the Advisory Opinions?issuing the Advisory Opinions?

• A single arbitrator or two arbitrators A single arbitrator or two arbitrators and a president, they are Barristers, and a president, they are Barristers, Attorneys -at-law and/or Law Attorneys -at-law and/or Law Professors selected from all over the Professors selected from all over the world;world;

-They must be experts in Sports Law.-They must be experts in Sports Law.

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The Panel’s OpinionThe Panel’s Opinion

83. In the Panel’s opinion, therefore, for cases when there is no 83. In the Panel’s opinion, therefore, for cases when there is no “adverse analytical finding” proving the “presence of a “adverse analytical finding” proving the “presence of a prohibited substance or its metabolites or markers ………” …… prohibited substance or its metabolites or markers ………” …… the use or attempted use can be proved by any proof.the use or attempted use can be proved by any proof.

CAS 2005/C/841 CONICAS 2005/C/841 CONI

• The Panel expresses itself as a collective, authoritative The Panel expresses itself as a collective, authoritative subject.subject.

• Its members have to agree among themselves and then Its members have to agree among themselves and then persuade the parties involved.persuade the parties involved.

• It has to mediate within different legal cultures and It has to mediate within different legal cultures and languages.languages.

• It can thus be defined as a professional community It can thus be defined as a professional community engaged in collaborative practices (after Lave and engaged in collaborative practices (after Lave and Wenger :1991 in Bhatia:2004)Wenger :1991 in Bhatia:2004)

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hybrid textshybrid texts

• provisions obliging athletes (and the other subjects of the provisions obliging athletes (and the other subjects of the sporting system governed by FIGC) to adopt a sporting system governed by FIGC) to adopt a “c“condotta ondotta conforme ai principi sportivi della lealtà, della probità e conforme ai principi sportivi della lealtà, della probità e della rettitudine nonché della correttezza morale e della rettitudine nonché della correttezza morale e materiale in ogni rapporto di natura agonistica, economica materiale in ogni rapporto di natura agonistica, economica e socialee sociale” ” ((“b“behaviour in accordance with the sports ehaviour in accordance with the sports principles of loyalty, probity and rectitude as well as of principles of loyalty, probity and rectitude as well as of moral and material correctness in any relation of moral and material correctness in any relation of competitive, economic and social naturecompetitive, economic and social nature”,”, Panel Panel’s’s translation). CAS 2005/C/841CONItranslation). CAS 2005/C/841CONI

• Trosborg (1997: 145-146) definesTrosborg (1997: 145-146) defines hybrid texts as hybrid texts as “documents produced in a supranational multicultural “documents produced in a supranational multicultural discourse community where there is no linguistically neutral discourse community where there is no linguistically neutral ground”. In some cases they are translated or re-written.ground”. In some cases they are translated or re-written.

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CAS proceduresCAS procedures

• Contractual relations or torts – (Ordinary Contractual relations or torts – (Ordinary arbitration or mediation)arbitration or mediation)

• Disputes resulting from decisions taken by the Disputes resulting from decisions taken by the bodies of sports federations – (Appeals bodies of sports federations – (Appeals arbitration procedure) arbitration procedure)

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How long does CAS arbitration How long does CAS arbitration last?last?

• Ordinary procedure – between 6 and 12 monthsOrdinary procedure – between 6 and 12 months

• Appeals procedure – within 4 monthsAppeals procedure – within 4 months

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MEDIATIONMEDIATION

• Parties Make Decision To Settle Or NotParties Make Decision To Settle Or Not• Flexible (procedure and outcome)Flexible (procedure and outcome)• Creative, InformalCreative, Informal• Private, No Public RecordPrivate, No Public Record• Can Be Win-Win (both sides better off than Can Be Win-Win (both sides better off than

before)before)• Is not binding on the partiesIs not binding on the parties• Can End With No ResolutionCan End With No Resolution• No risk: a party can always say “No deal”No risk: a party can always say “No deal”

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Under what conditions will the CAS Under what conditions will the CAS Intervene?Intervene?

• WRITTEN AGREEMENT BETWEEN PARTIESWRITTEN AGREEMENT BETWEEN PARTIES

• Such agreement could be:Such agreement could be:

a) Appear in a contracta) Appear in a contract

b) Appear in the statutes or regulations of a b) Appear in the statutes or regulations of a sports organization.sports organization.

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ARBITRATIONARBITRATION

• Third Party Neutral Makes a DecisionThird Party Neutral Makes a Decision

• Adversary Process, Like a Debate or Adversary Process, Like a Debate or CourtCourt

• Parties and Counsel Prepare Like a TrialParties and Counsel Prepare Like a Trial

• Could Be BindingCould Be Binding

• Neutral Listens To Evidence and Neutral Listens To Evidence and ArgumentArgument

• Generally a Winner and a LoserGenerally a Winner and a Loser

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FIFAFIFA DECISIONSDECISIONS APPEALAPPEAL

• 1111thth November 2002 : FIFA accepts jurisdiction of November 2002 : FIFA accepts jurisdiction of

the CAS (circular nº 827)the CAS (circular nº 827)

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• Players Status Committee Decision: Players Status Committee Decision: Artº 23 nº 3 – Decisions reached by the single Artº 23 nº 3 – Decisions reached by the single

judge may be appealed before the Court of judge may be appealed before the Court of Arbitration for Sport (CAS) Arbitration for Sport (CAS)

- Dispute Resolution Chamber- Dispute Resolution Chamber Artº 24 nº 2 – Decisions reached by the Dispute Artº 24 nº 2 – Decisions reached by the Dispute

Resolution Chamber may be appealed before the Resolution Chamber may be appealed before the Court of Arbitration for Sport (CAS) Court of Arbitration for Sport (CAS)

In 3 years : 333 arbitrations concerning FIFA decisionsIn 3 years : 333 arbitrations concerning FIFA decisions

FIFA Regulations for the FIFA Regulations for the Status and Transfer of Status and Transfer of PlayersPlayers

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The different natures of The different natures of arbitrationsarbitrations

• DisciplinaryDisciplinary: Sanctions applied by FIFA to the : Sanctions applied by FIFA to the Associations, Clubs and Players.Associations, Clubs and Players.

• Non DisciplinaryNon Disciplinary: financial fights between : financial fights between Associations, clubs, players and players agents.Associations, clubs, players and players agents.

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MATTERS OF PROCEDURES MATTERS OF PROCEDURES PROVISIONAL AND CONSERVATORY PROVISIONAL AND CONSERVATORY MEASURESMEASURES SUSPENSIVE EFFECTSUSPENSIVE EFFECTArtº R37 of Code of Sports Related Arbitration Artº R37 of Code of Sports Related Arbitration

(Code)(Code)PrinciplesPrinciples• Previous submission of the statement’s appeal or Previous submission of the statement’s appeal or

request for arbitration ;request for arbitration ;

• Competence – President of the relevant division prior to Competence – President of the relevant division prior to the transfer of the file to the Panel or thereafter the the transfer of the file to the Panel or thereafter the Panel ;Panel ;

• Position of the opponent within ten days (in less time in Position of the opponent within ten days (in less time in exceptional cases)exceptional cases)

• Brief delayBrief delay

• Provisional Mesures in the case of utmost urgency : Provisional Mesures in the case of utmost urgency : order by the President of the relevant divison and the order by the President of the relevant divison and the opponent is heard subsequentlyopponent is heard subsequently

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Cumulative Conditions Cumulative Conditions according to the CAS according to the CAS JurisprudenceJurisprudence

• Periculum in mora – Periculum in mora – Risk of Irreparable Risk of Irreparable damagesdamages

• Fumus boni juris – Probability of success on the Fumus boni juris – Probability of success on the main case main case

• Balance of interests – suspensive effect Balance of interests – suspensive effect (superdeas) is more important(superdeas) is more important

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CAS 2003/O/482CAS 2003/O/482ORTEGA VS. FENERBAHCEORTEGA VS. FENERBAHCE

FACTSFACTS

• 23rd May 2002: Ariel Ortega was transfered from 23rd May 2002: Ariel Ortega was transfered from River Plate to Fenerbahce – 4 years contractRiver Plate to Fenerbahce – 4 years contract

• Transfer indemnity – USD 7.500.000 Transfer indemnity – USD 7.500.000

• Image Rights – USD 2.000.000Image Rights – USD 2.000.000

• Salary – USD 1.000.000 per seasonSalary – USD 1.000.000 per season

• Ortega was sad after six monthsOrtega was sad after six months

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• Did not return to Turkey despite Fenerbahce insistenceDid not return to Turkey despite Fenerbahce insistence

• Fenerbahce presents a claim on FIFAFenerbahce presents a claim on FIFA

6th June 2003: Dispute Resolution Chamber of FIFA6th June 2003: Dispute Resolution Chamber of FIFA• Breach of contract without just causeBreach of contract without just cause

• Suspension of the player until December 2003Suspension of the player until December 2003

• Indemnity – USD 11.000.000Indemnity – USD 11.000.000

CAS 2003/O/482CAS 2003/O/482ORTEGA VS. FENERBAHCEORTEGA VS. FENERBAHCE

FACTSFACTS

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SUSPENSIVE EFFECTSUSPENSIVE EFFECT

Disciplinary matterDisciplinary matterCas 2003/O/482 Ortega v/ Fernerbahce & FIFACas 2003/O/482 Ortega v/ Fernerbahce & FIFA

• Irreparable Damages or Difficult to Repair in case Irreparable Damages or Difficult to Repair in case of immediate effect of the decision;of immediate effect of the decision;

• Probability of Success: If the case has an Probability of Success: If the case has an admissible ground admissible ground (pas temeraire)(pas temeraire)

Balance of interests Balance of interests • PLAYER: PLAYER: PlayPlay• FIFA: FIFA: Dissuasive effect and Protection of third Dissuasive effect and Protection of third

ClubsClubs

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LEGAL ISSUES LEGAL ISSUES CAS 2003/O/482 CAS 2003/O/482

ORTEGA VS. FENERBBAHCEORTEGA VS. FENERBBAHCE

• Arguments of the PlayerArguments of the Player– Right to a Hearing (art. R57 of Code)Right to a Hearing (art. R57 of Code)– Just Cause for the abandonment of the Just Cause for the abandonment of the

employmentemployment– Wage not paidWage not paid– No Medical AssistanceNo Medical Assistance

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DISPUTE RESOLUTION DISPUTE RESOLUTION CHAMBERCHAMBER

• Renunciation of employmentRenunciation of employment– Breach of contract according to art. 21 RSTJBreach of contract according to art. 21 RSTJ– Compensation = USD 11'000'000Compensation = USD 11'000'000– Suspension = 4 months from the beggining of Suspension = 4 months from the beggining of

the new seasonthe new season

• Conclusion: Conclusion: – Abandonment by the player without just causeAbandonment by the player without just cause– Breach of contract Breach of contract

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• Consequences: Consequences: – SuspensionSuspension– CompensationCompensation

Suspension: art. 23 RSTJ :Suspension: art. 23 RSTJ :• Breach of the contract during the first and Breach of the contract during the first and

second year: 4 months suspensionsecond year: 4 months suspension

Compensation: art. 22 RSTJCompensation: art. 22 RSTJ 1) Salary and other benefits in the contract in 1) Salary and other benefits in the contract in

progress and/or in a new contractprogress and/or in a new contract 2) Duration of the remaining period of the 2) Duration of the remaining period of the

contract in progress (up to five years maximum)contract in progress (up to five years maximum) 3) Full amount paid by the previous club in 3) Full amount paid by the previous club in

proportion on the number of years of the contract proportion on the number of years of the contract left (Pro Rata)left (Pro Rata)

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• CalculationCalculation of the damage: of the damage:– Investment of Investment of USD 12'350'000:USD 12'350'000:

• USD 7’500’000 transfer fee of the playerUSD 7’500’000 transfer fee of the player• USD 1’350’000 AFA and TaxUSD 1’350’000 AFA and Tax• USD 2’000’000 image rights USD 2’000’000 image rights • USD 1’500’000 player’s agent fee USD 1’500’000 player’s agent fee • USD 1’000’000 wages per seasonUSD 1’000’000 wages per season• Depreciation 9 months / 4 yearsDepreciation 9 months / 4 years

• ARBITRATION CAS PANELARBITRATION CAS PANEL– CalculationCalculation of the damage of the damage = according to the = according to the

art. 21 et 22 of the Regulation 2001art. 21 et 22 of the Regulation 2001– Suspension according to the art. 23 of the Suspension according to the art. 23 of the

Regulation 2001Regulation 2001

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Power and statisticsPower and statistics

• Legal discourse tends to be self-Legal discourse tends to be self-referential, all the more so at the CAS. referential, all the more so at the CAS.

• At the CAS, information about cases and At the CAS, information about cases and opinions is never made fully available.opinions is never made fully available.

• looking at the statistics (see handout) looking at the statistics (see handout) rather than a legitimate peripheral rather than a legitimate peripheral participation, the analyst has barely participation, the analyst has barely managed to put a foot in the door.managed to put a foot in the door.

• However, despite such variance, the sub-However, despite such variance, the sub-genre remains recognisable and genre remains recognisable and realistically integral.realistically integral.

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Legal CulturesLegal Cultures

• The legal background of CAS arbitrators basically stems The legal background of CAS arbitrators basically stems from two legal traditions: common law and civil law.from two legal traditions: common law and civil law.

• In the EU, the effort to harmonisation has led to merging In the EU, the effort to harmonisation has led to merging elements of common law with civil law both in legislation elements of common law with civil law both in legislation and court procedures.and court procedures.

• National legislation in EU countries has followed suit:National legislation in EU countries has followed suit: (British law incorporates elements of civil law and Italian (British law incorporates elements of civil law and Italian

law elements of common law such as precedent);law elements of common law such as precedent);• The CAS Code, initially based on Swiss Law, is made up of The CAS Code, initially based on Swiss Law, is made up of

statutes and rules but incorporates case law as well.statutes and rules but incorporates case law as well.• Could this be a case of hybridizing legal systems?Could this be a case of hybridizing legal systems?